Discrimination in the Workplace

Discrimination at work is distressing and can often be resolved with the relevant help and guidance. Read on to find out who constitutes a worker and what discrimination means.

Who is a worker?

The Equality Act 2010 is the most significant piece of UK legislation that protects individuals from discrimination. Every worker is protected under the Equality Act 2010, including those who are self-employed, working for an agency, a director of a company, partner of an LLP, and those doing work experience or an internship. Put simply, where contract of employment or a contract to “personally…do work” with an organisation exists, there is a contractual relationship capable of protection. So will individuals who are involved in ‘employment services’ such as head-hunters or vocational experience providers. 

What unites all definitions of a worker is that they must be obliged to provide services; the ability to refuse work is often suggestive of a relationship that falls outside of the Equality Act 2010. A good illustration of this is the case of Czikai v Fremantle Media Ltd [2010] 7 WLUK 708, where a participant in the television programme Britain’s Got Talent was held not to be a worker. She was not obliged to perform or to be offered a contract (of any kind) for employment if she won the competition. 

Protection against discrimination applies to all parts of a worker’s activities, including recruitment, their day-to-day relationships with individuals, promotion and dismissals. 

In respect of recruitment, as the Czikai case demonstrates, even though a contractual relationship does not exist it is the parties’ intentions that at the end of the process one will arise. This applies even where the recruitment process is merely contemplated, as in the case of NH v Associazione Avvocatura per i diritti LGBTI – Rete Lenford (Case C-507/18) where a lawyer who claimed on the radio that he would not hire gay lawyers were remarks that could fall within the scope of a recruitment process. 

In respect of dismissal, it is important to keep in mind that issues around discrimination and dismissal differ to the concept of ‘unfair dismissal’. Being unfairly dismissed only applies to employees, although discrimination can factor into what makes a dismissal unfair at law. 

What is discrimination?

The Equality Act 2010 states that at work your ‘protected characteristics’ cannot be discriminated against. Some examples of these protected characteristics include:

• Sex

The wording of the Equality Act 2010 is binary – covering discrimination against men or women. 

• Pregnancy or maternity

The law covers you if you’re pregnant or on maternity leave. This includes being on ordinary or additional maternity leave. A woman is ‘protected’ from discrimination from the start of her pregnancy until she returns to work following maternity leave. If she did not take maternity leave (e.g because she was not entitled to it as a job applicant, or if she suffered a miscarriage) then the protected period ends two weeks after the end of the pregnancy. 

• Marriage or civil partnership

The law covers you if you are legally married or in a civil partnership. You are still protected if you are separated but your marriage or civil partnership has not legally dissolved. 

• Gender reassignment

The law covers gender reassignment, meaning if you are transgender. You are covered if you plan to transition, are in the process of transitioning, or have already transitioned. One’s status is self-determinative, meaning that the involvement of a doctor to assist in a transition is not required. 

Individuals identifying as non-binary were originally not protected under the Equality Act 2010. However, the recent case of Taylor v Jaguar Land Rover Ltd [2020] 9 WLUK 200 confirms that non-binary individuals transitioning between genders would be protected by the Equality Act 2010. It remains to be tested whether individuals who are not transitioning would be afforded the same protection, although it appears likely. 

• Sexual orientation

You are protected if you are gay, lesbian or bisexual. Asexual individuals are not protected, as an attraction to a gender is required under the definition. 

• Religion or belief

This includes belonging to an organised religion, having a religious belief, having no religion or having philosophical beliefs.

• Race

This includes your skin colour, nationality, ethnic origin, national origin.

• Disability

If you’re disabled, you have the same rights as other workers. Reasonable adjustments include helping disabled applicants with application forms, such as providing them in braille. Employers must also provide wheelchair access for disabled workers.  

A disability could be mental or physical, and you could even be covered if you do not consider yourself disabled.

• Age

The definition under the Equality Act 2010 is highly flexible. It covers references to individuals being a particular age, part of a particular age group (e.g ‘over-fifties’), or discriminated against because they fall outside of a particular age group. An illustrative example of age discrimination is the case of McCabe v Selazar ET/2200501/2021, where a reference to a woman’s perceived ‘menopause’ was in fact a reference to her being an ‘older woman’.  

You are also protected from discrimination if you are associated with someone with a protected characteristic, such as family or friends or you have complained about discrimination or supported someone else’s claim.

What are you protected from?

The protections can be summarised by reference to the different types of discriminatory acts in the Equality Act 2010. There are four main types. 

Direct discrimination is where someone has been treated less favourably (in a tangible way) than someone else without the protected characteristic has or would be. A frequent example is the use of dress codes that disadvantage someone of a particular religion. 

Indirect discrimination is ‘group based’ discrimination where a policy (formal or informal) disadvantages a particular group. Of course, it applies even where just one individual falls within that group in the particular context. Refusing to hire individuals under the age of 25 is a good example. 

Harassment occurs where one person does something unwanted to another person, and that conduct is related to the other person’s protected characteristic. That conduct must have either the purpose or effect of violating the other’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment.

The final type of discrimination is victimisation. This arises where someone is disadvantaged because they have done a ‘protected act’ – that is bringing or giving evidence in proceedings against an employer under the Equality Act 2010, or otherwise making allegations of breaches of the Equality Act 2010 by another person.  

Exemptions

If your employer has a proportionate means of achieving a legitimate aim, the discrimination may not be against the law.

There are two parts to this:

• The aim has to be legitimate, for example ensuring the health and safety of other staff members or customers; and
• Secondly, the behaviour of the employer must be proportionate, meaning they cannot discriminate any more than they absolutely need to.

For example, the fire service requires all job applicants to take a number of physical tests, which may indirectly discriminate against some disabled people. However, this is a proportionate means of achieving a legitimate aim (a properly functioning fire services) and would therefore not be a breach of the Equality Act 2010. 

The Explanatory Notes to the Equality Act 2010 provide illustrative examples in looser contexts:

• The need for authenticity in a performance would justify hiring only a black man for the part of Othello; or
• A Muslim woman may not use a vocational employment service if it was operated by a man, and therefore the service could avoid hiring men.

The Equality Act 2010 also includes carve outs for discrimination in religious contexts (Catholic priests only being men), the armed forces, and employment services that cater only to one particular group. 

What to do if you are being discriminated against

The standard procedure for bringing a claim for discrimination under the Equality Act 2010 is broken into three parts: 

• Raising the matter informally or formally within the workplace. Potential claimants are encouraged to draft a statement, to be provided to their employer, describing what happened. The potential claimant should ask their employer whether they agree with their statement, and any additional questions (e.g requests for notes taken at a job interview). The Advisory, Conciliation and Arbitration Service (ACAS) has recently published guidance on the statement/question procedure.
• If the response is unsatisfactory, in most circumstances the next step is to seek early conciliation with ACAS. This is a voluntary process (either party to the dispute can refuse to participate) which involves a third party mediating the dispute over the telephone. ACAS must normally be involved before you can bring a claim in the tribunal.
• Employment tribunal claim: An individual has three months from the date of the discrimination to bring a claim, although this is extended where ACAS has been involved. The burden of proof is initially on the claimant to demonstrate that the discrimination occurred. Once the claimant has done so, it shifts to the employer to demonstrate that it did not discriminate.

Final words

If you are successful in your claim against an employer, you can be entitled to damages (which in some cases are significant), the stopping of the discrimination, and/or an apology. 

Navigating all the elements of discrimination in the workplace is difficult, and often very distressing. If you have been accused or are a victim of discrimination, please contact us here.